European incentives

Europe will support Ukraine on the way to the complete reformation of criminal justice. A group of specialists, who participated in the expertise of the new Criminal Procedure Code, and independent experts have already started working within the framework of a two-year project initiated by the Council of Europe. The project was sponsored by the Danish government. Representatives of five countries joined the expert group: Lorena Bachmayer Winter, professor at the Criminal Law and Process Department, the Complutense University (Spain), James Hamilton, president of the International Association of Prosecutors, substitute member of the Venice Commission (Ireland), Mikael Lyngbo, legal expert at the Danish Helsinki Committee for Human Rights (Denmark), Jeremy McBride, barrister, Monckton Chambers, London, chair of the Scientific Committee of the European Union’s Fundamental Rights Agency (Great Britain), and Eric Svanidze, former member of the European Committee for Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Georgia).

The main goal of the project is to increase the effectiveness of the system of criminal justice in Ukraine according to the European standards. The experts think that the adopting of a new CPC will be a significant step towards this goal. However, domestic lawyers have noted multiple times that Ukraine is famous for quality of the legislation: the majority of laws received the highest praise of the Venice Commission, but the level of their application is reversely proportional. The European specialists also stress the importance of applied implementation of the law. Most of them say that the text of the CPC is revolutionary indeed, especially when compared with the old document on regulation of criminal justice. However, there are too many complications when it comes to its practical implementation in the existing conditions.

First of all, the experts draw attention towards the problem of the Code’s legitimacy, which is based on people’s trust in the justice system and support of declared regulations. The experts think that the activity of the mass media, who publish critical reviews of the Code, is negative in this sense: the Code itself is fine.

Besides, there can be difficulties when it comes to staffing according to the newly created system. “It is not the study of the Code’s articles that must be the main point during the specialists’ training, but the understanding of their spirit. A change of mentality is required for the implementation and correct interpretation of the CPC regulations,” McBride emphasized.

An important role is assigned to the leader in the process of breaking an existing system, since it is them who will bear responsibility for the implementations of the passed decisions. According to the Europeans, the presence of people who are able to demonstrate strong will-power in this matter is a weak point too.

The employees of the structures to be transformed are not interested in changing the system. For example, the European specialists note that a number of problems of Ukraine’s system of justice are related to the practice of appointment of prosecutors. The experts describe a system in which the candidate for the post of prosecutor general is submitted by the president (for further approval of the Verkhovna Rada), and only the president can dismiss the prosecutor general, as inadequate. Appointments and promotions of judges have also received negative reviews of the European experts. By the way, the new Code provides a certain desacralization of the court. From now on, the main task of the judge will be not the search of truth, but the hearing of the case (the leading role in the investigation of which is given to the prosecutor), considering the evidence, and making decisions.

The last distinct stumbling block on the path of reformation is the need to adopt accompanying laws, especially the law on the prosecutor’s office and on the creation of the State Bureau of Investigation. Such changes should balance the legal system in Ukraine through a distribution of powers and elimination of the possibility of accumulation of resources for one institution to pressurize another.

Group members said they had received requests for assistance from individual institutions. However, they will cooperate more actively in the areas that they defined as problematic because of a lack of understanding of the chosen direction or attempts to circumvent the law. “Some of the main requirements are the understanding of the European Convention on Human Rights and the adaptation of the activity to decisions of the European Court of Human Rights,” Lyngbo stated. Intensive training programs will be carried out within the project. They will provide substantial preparation for judges, prosecutors, and lawyers. According to the European justice standards, the competition between the latter and the prosecution must be transferred to the plane of equal confrontation, where the court’s decision will depend on each side’s level of professionalism.

In conclusion, the experts said that the Criminal Procedure Code provided only legitimate framework for observance of human rights, rule of law, and prevention of selective justice. The implementation of the rules declared and the fair play will depend on the key players in the system. “In general, everything should be done for the law to be properly applied here without permanent transfer of cases to the Strasbourg Court,” said Hamilton, summing up the group’s work.